Cole v Whitfield

Cole v Whitfield,[1] was a landmark High Court of Australia decision where the Court overruled two long settled approaches to the interpretation of the Constitution, that no regard could be had to the debates of Constitutional Conventions in the interpretation of the Constitution, and that the words "absolutely free" in Section 92 of the Constitution of Australia,[2] protected a personal individual right of freedom in interstate trade.[3] It was instead replaced with the economic notion of "free trade" in that interstate trade was not to be subject to discriminatory burdens of a protectionist kind. Despite being a unanimous judgment, the decision remains controversial.[4][5]

Cole v Whitfield
CourtHigh Court of Australia
Decided2 May 1988
Citation(s)[1988] HCA 18, (1988) 165 CLR 360
Case history
Prior action(s)Court of Petty Sessions (Tas) September 1986
Case opinions
(7:0) Where a law creates a discriminatory and protectionist burden on interstate trade and commerce and is not pursuant or incidental to a non-protectionist purpose, it will be in breach of Section 92 of the Australian Constitution. (per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey & Gaudron JJ)
Court membership
Judge(s) sittingMason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ

Background

Approach to the interpretation of the constitution

The first five judges appointed to the High Court had all been leading participants in the Constitutional Conventions and all are properly seen as among the framers of the Constitution,[6] The Court described the Constitution as "framed in Australia by Australians, and for the use of the Australian people",[7] thus when the Court spoke of what was framers of the Constitution knew, intended or expected,[8] their Honours are referring to their personal experience in that process, and not to the intention or knowledge of the Imperial Parliament in passing the Commonwealth of Australia Constitution Act 1900.[9] Despite the references to intention however, it was the settled doctrine of the High Court that the records of the debates of the Constitutional Conventions were not available in the construction of the Constitution.[10][11][12]

The facts

Whitfield was a crayfish trader charged with the unlawful possession of undersized crayfish. He resided in Tasmania, but the fish were purchased in South Australia and shipped to Tasmania. Under South Australian state's law, the fish that he purchased were of a lawful size, but under Tasmanian laws, they were undersize. The Fisheries Act 1959,[13] empowered the Governor of Tasmania to make regulations relating to a number of subjects, one of which was the classification of undersized fish. The Sea Fisheries Regulations 1962 outlawed catching male crayfish less than 11 cm (110 mm) and female crayfish less than 10.5 cm (105 mm) in length.[14]

Whitfield and his company imported some crayfishes from South Australia for reselling, which were undersized under Tasmanian regulations. Cole, a Fisheries Inspector, charged Whitfield with a breach of the regulations. Whitfield pleaded not guilty and argued that section 92 protected the freedom of his interstate trade. The magistrate dismissed the complaint. Cole appealed to the Supreme Court of Tasmania however the case was removed to the High Court for determination of the constitutional question.[1]:at paras 3–4

Decision

The Court decided that the clause "absolutely free" in Section 92 was not a guarantee of absolute freedom of restrictions. Such a notion, they argued, would be chaotic. The Court rejected the "individual rights" approach favoured in earlier cases such as Bank of New South Wales v Commonwealth,[3] and endorsed the "free trade" approach. The Court broke with tradition and consulted the Constitutional Convention debate transcripts to establish the true purpose of Section 92. The Court concluded it was to create a free trade zone among the Australian states, and the words "absolutely free" referred to freedom in the economic sense. Thus, laws of a protectionist kind interfering with interstate trade and commerce would be invalid.

The Court looked to the purpose of the Tasmanian laws and found that their objectives were of a conservational nature. As the laws applied to all crayfish, they were not of a protectionist nature and hence not in breach of Section 92.

See also

References
  1. Cole v Whitfield [1988] HCA 18, (1988) 165 CLR 360 (2 May 1988), High Court (Australia).
  2. Constitution (Cth) s 92 Trade within the Commonwealth to be free.
  3. Bank of New South Wales v Commonwealth [1948] HCA 7, (1948) 76 CLR 1 (11 August 1948), High Court (Australia).
  4. Connolly, P (1992). "Right According to Law" (PDF). Samuel Griffith Society. Archived from the original (PDF) on 16 May 2017. Retrieved 9 June 2017.
  5. Pui, V.G. "Intercolonial Free Trade: The Drafting History of Section 92 of the Australian Constitution". (2011) 30 University of Tasmania Law Review 1.
  6. The WorkChoices case [2006] HCA 52, (2006) 229 CLR 1 at [48]-[49] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
  7. Peterswald v Bartley [1904] HCA 21, (1904) 1 CLR 497.
  8. D'Emden v Pedder (1904) 1 CLR 91 at p. 113.
    Railway servants case (1906) 1 CLR 488 at p. 536.
    R v Barger (1908) 6 CLR 41 at p. 69-7 per Grifith CJ, Barton & O'Connor JJ.
    Union label case (1909) 8 CLR 330 at p. 514 per Griffith CJ.
    Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 33 at p. 563 per Barton J.
  9. Higgins J noted in Baxter v Commissioners of Taxation [1907] HCA 76, (1907) 4 CLR 1087 at p. 1169-70 that in relation to section 74 of the Constitution the question of intention may be a reference to the intention of the Conventions, the Australian voters who approved the draft constitution, the Australian delegates in London who negotiated the passage of the constitution, the British law officers who redrafted section 74 or to the Houses of the British Parliament who passed the "Commonwealth of Australia Constitution Act 1900 (Imp)" (PDF)..
  10. Municipality of Sydney v Commonwealth [1904] HCA 50, (1904) 1 CLR 208 at p. 213 per Griffith CJ & Barton J (26 April 1904), High Court (Australia).
  11. Tasmania v Commonwealth [1904] HCA 11, (1904) 1 CLR 329 at p. 333 per Griffith CJ, p. 348 per Barton J at p. 359 per O'Connor J (26 April 1904), High Court (Australia).
  12. Attorney-General (Vic); Ex Rel Black v Commonwealth ("DOGS case") [1981] HCA 2, (1981) 146 CLR 559 at p. 577 per Barwick CJ, High Court (Australia).
  13. Fisheries Act 1959 (Tas) s 9.
  14. Sea Fisheries Regulations 1962 Tas reg 31(1)(d).
  15. Castlemaine Tooheys Ltd v South Australia [1990] HCA 1, (1990) 169 CLR 436 (7 February 1990), High Court (Australia).
  • Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Annandale, NSW: Federation Press. pp. 1206–1214. ISBN 978-1-86287-918-8.
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